In advance of the upcoming Informal Meeting of European Union (E.U.) Foreign Ministers on August 30-31, we are writing you about the most recent Bush Administration attack on the International Criminal Court (ICC). As you know, Washington is applying intense pressure on European Union Member States as well as E.U. Candidate States to sign what it claims are "Article 98 agreements." These bilateral agreements, referring to Article 98(2) of the ICC Treaty, would require a signatory European Union Member State to send any American national sought by the Court to the United States instead of surrendering him or her to the ICC.
Washington's latest attack comes at what should be a moment of celebration. In early September, the ICC's historic first Assembly of States Parties will convene at the United Nations headquarters in New York. Nearly eighty states have ratified the Rome Statute, including, most recently, Colombia. Many more signatory states will ratify before November 30 in order to participate in the election of judges and the prosecutor. The Court's "Advance Team" is at work in The Hague creating the technical and administrative infrastructure the Court will need to open in 2003. The International Criminal Court is a tremendous achievement for which your government, as a founding State Party and the European Union as a whole, deserves much credit.
However, the U.S. government is determined to continue obstructing the Court. Having failed during the U.N. Security Council debate in July to secure an iron-clad exemption from the Court's jurisdiction for U.S. personnel, the Bush Administration is determined to prevent the European Union from adopting a coordinated position rejecting these agreements. In the last week the Bush Administration has explicitly warned European Union governments not to challenge U.S. pressure on E.U. Candidate States and not to formulate a coordinated rejection of Washington's purported "Article 98 agreements." We believe this unprecedented diplomatic overreaching is due to Washington's alarm that the E.U.'s Common Foreign and Security Policy, tracking the Common Position on the ICC, will define itself in support of the Court and in opposition to the requested Article 98(2) agreements with the U.S..
For the legal and policy reasons explained below, Human Rights Watch urges your government to:
(1) At the upcoming Informal Meeting of Foreign Ministers in Denmark, support the adoption of a coordinated European Union rejection of U.S. demands to enter into the purported " Article 98 agreements."
(2) At a minimum, at the Meeting insist on deferring the adoption of a coordinated position on these agreements until there has been sufficient time analyze and debate fully its legal implications. This is all the more essential in light of the E.U.'s Common Position on the International Criminal Court.
(3) At the upcoming OSCE Human Dimension Implementation Meeting and the General Debate at the United Nations Fifty-Seventh General Assembly articulate the importance your government attaches to the ICC.
Article 98 Agreements
Human Rights Watch believes ICC States Parties and signatory states have a legal obligation that prevents them from entering into Article 98 agreements with non-State Parties, particularly the United States, the only country to have officially repudiated the Rome Statute.
Article 98 was included in the Rome Statute to provide an orderly and rational process for the handling of suspects among states cooperating with the Court. It was not intended to allow a state that has refused to cooperate with the Court to negotiate a web of agreements to secure exemption for its citizens or otherwise undermine the effective functioning of the Court. Signing such an agreement with the United States, given its current policy of non-cooperation with the Court, would contravene the obligations that governments undertook upon signing or ratifying the Rome Statute.
In this context it is important to recall Article 98's negotiating history. The provision was inserted into the Rome Statute on the insistence of the United States at the Rome Diplomatic Conference. U.S. negotiators argued that Article 98 would increase Washington's "comfort level" with the Court and keep the U.S. engaged in the ICC process. States agreed to include Article 98 on this basis. Given the Rome Statute's preference for good-faith national investigations and prosecutions, this rule made some sense: governments could have "first crack" at any of their nationals who were suspects, on the understanding that the suspect would be surrendered to the ICC if the Court found that national proceedings were not conducted in good faith. However, in light of the U.S. government's repudiation of the Court, Washington has eliminated the underlying rationale for any Article 98 agreement with the United States, since the Bush Administration would refuse to surrender an American suspect to the ICC even if the Court found the U.S. investigation or prosecution to have been a complete sham. Thus, your government and the E.U. would be justified in refusing to enter into such agreements with the United States.
To elaborate our legal views:
(1) Article 98 must be construed narrowly and consistently with the jurisdictional regime in the Rome Statute, which is based on the nationality of the accused or the state where the crimes occurred.
(2) Article 98 does not override the requirement that national prosecutions for Rome Statute crimes be subject to ICC scrutiny to determine whether investigations and prosecutions are conducted in good faith.
(3) States Parties and signatories of the Rome Statute are legally required to ensure that these basic and important aspects of the Rome Statute are not violated: States Parties by virtue of their legal obligations in the Rome Statute to cooperate with the ICC; signatories of the Rome Statute by virtue of their legal obligations under the Vienna Convention on the Law of Treaties to "refrain from acts which would defeat the object and purpose" of the Rome Statute.
(4) Article 98 permits a State Party to enter into jurisdictional-routing agreements with another State Party that allows it first chance at investigating and prosecuting. Such agreements are technically consistent with the complementarity principle in the Rome Statute, although Human Rights Watch discourages States Parties from entering into them with other State Parties.
(5) Article 98 does not permit a non-State Party (and particularly one that has repudiated the Rome Statute) to effectively provide immunity from the ICC's jurisdiction and to obstruct the efforts of the ICC either to prosecute the most serious international crimes or to ensure that good faith national prosecutions occur.
(6) States Parties and signatories of the Rome Statute should not sign an agreement providing immunity from ICC prosecution with a country that has repudiated or has not signed the Rome Statute - to do so would undermine the "object and purpose" of the treaty.
(7) Agreements ("Article 98" agreements or Status-of-Forces Agreements) that purport to require States Parties and signatories of the Rome Statute to turn over military personnel suspected of committing crimes within the ICC's jurisdiction to a country that has repudiated or has not signed the Rome Statute are thus not valid.
Beyond the legal arguments, Human Rights Watch urges the European Union to reject Article 98 agreements for important policy reasons. The effective widespread exemption of a certain class of persons - U.S. nationals - from the jurisdiction of the Court would cause a serious breach in the regime of international criminal responsibility envisioned by the Rome Statute. The exemption could also serve as a dangerous precedent to encourage other states to seek similar immunity for their citizens. This would undermine the effectiveness and credibility of the Court.
If the E.U. is unable to agree on a coordinated rejection of the U.S. demand for a purported Article 98 agreement, we urge you to defer the matter for at least several months to allow time to fully consider the implications of the European Union's Common Position on the International Criminal Court in light of the complex legal and policy issues involved. In reality, the Court will not be able to request the surrender of anyone for at least a year, so it is unreasonable to demand the European Union Member States be rushed into negotiations or cease a "go slow" approach.
Before and since the Rome Diplomatic Conference, the E.U. has provided vital leadership in building the Court, an institution we believe has the potential to be the most important human rights mechanism created in fifty years. We know ICC States Parties worldwide are looking to the European Union to provide leadership here in a manner consistent with its Common Position on the Court. To falter now would not only forfeit that leadership role but would also damage the E.U.'s Common Foreign and Security Policy. Ironically, capitulation to this pressure would also embolden the most unlilateralist actors within the Bush Administration.
The General Debate at the United Nations General Assembly
Human Rights Watch urges your government to include a strong reference to the ICC in your intervention at the forthcoming General Debate at the United Nations Fifty-Seventh General Assembly. In the last two years, the General Debate has provided a valuable forum for states to highlight the importance they attach to the ICC. This is the first General Assembly General Debate since the entry into force of the Rome Statute on July 1, 2002. It is also the first session since the Bush Administration's unprecedented "unsigning" of the Rome Statute and its attacks on the Court. For these reasons, we believe the General Debate presents an especially appropriate moment to celebrate the Court's coming into being. Strong statements of support will track the many positive interventions made during the extraordinary plenary session of the ICC Preparatory Commission on July 3 as well as the statements made at the open meeting of the U.N. Security Council on July 10. We urge you to include a strongly worded statement of support at the forthcoming General Assembly to help underscore the breadth and depth of support for the ICC.
Human Rights Watch appreciates your government's contributions to the establishment of the International Criminal Court. We are confident that you as an E.U. Members State, in concert with the other like-minded states, will develop the appropriate approach, grounded in principle and honed by effective tactics, to support the Court in this crucial period.
Lotte Leicht, Brussels office director
Richard Dicker, director of the International Justice program
CC: Ambassador to the PSC